In Tsarnaev case, death sentence policy change will have little short-term effect, attorneys say

Dzhokhar Tsarnaev. AFP/US DEPARTMENT OF JUSTICE/AFP/Getty Images

While the federal government said Thursday it will resume executing death-row inmates, that policy change will have little effect on convicted Boston Marathon bomber Dzhokhar Tsarnaev’s case in the short-term, according to local attorneys and legal scholars.

Tsarnaev was sentenced to death in 2015 for detonating a bomb amid Marathon spectators, becoming the first terrorist condemned to death by a jury in the post-9/11 US. But when that happened, the Justice Department was operating under a de facto moratorium on executions because of a review of federal death penalty policy.

That review has been completed, Attorney General William Barr said Thursday, and it has cleared the way for executions to resume.

Tsarnaev has appealed his conviction and death sentence. Since the appeal is still pending, the policy change holds little significance for his case at the moment, according to Daniel Medwed, a professor at Northeastern University School of Law.

“That is going to take a while to unfold,” said Medwed of the appeal.

After that appeal, Tsarnaev will be able to seek review from the US Supreme Court, and after that, he will have the opportunity to file a petition to challenge the sentence in federal district court, according to Medwed, who teaches criminal law and evidence.

“He has at a minimum three litigation procedures available before an execution date would even matter,” said Medwed.

According to Medwed, it would likely be “at least several years before there is any realistic possibility of a meaningful” execution date.

D. Christopher Dearborn, a professor who teaches criminal procedure and trial practice at Suffolk University Law School, had similar sentiments, saying he did not think Thursday’s developments would “have a huge impact” on Tsarnaev’s case.

“He’s still got a bunch of procedural steps to go,” said Dearborn. “The case is a long way from over.”

Dearborn found the timing of the death penalty announcement “to be a little suspicious.”

“I think a cynical person would say it’s [President] Trump playing to his base again,” he said.

Trump supports the death penalty.

For Tsarnaev’s legal defense, Dearborn thought there were arguments to be made regarding pre-trial publicity possibly tainting jurors and the choice of venue for the trial.

In their 500-page brief filed in the US Court of Appeals for the First Circuit, Tsarnaev’s taxpayer-funded legal team argued that the case should not have been tried in Boston and that the presiding judge allowed jurors to serve who appeared to have lied during the selection process.

Tsarnaev’s lawyers at trial admitted his role in the attack, which killed three people and wounded more than 260 others, but attempted to portray his older brother and co-assailant, Tamerlan, who died in a confrontation with police days after the blasts, as the dominant leader of the plot.

The brothers also killed an MIT police officer while they were on the run.

In another case, a federal jury in Massachusetts condemned admitted serial killer Gary Lee Sampson to death in 2017 for a weeklong crime spree that left three people dead in two states in July 2001.

State courts in Massachusetts struck down the death penalty laws in the early 1980s and the last executions in the state were in the late 1940s. But Tsarnaev and Sampson were charged with federal crimes that allow capital punishment; in Sampson’s case, it was the crimes of carjacking resulting in death.

Martin G. Weinberg, a Boston criminal defense attorney, said in the short-term, Thursday’s news is a nonfactor for Tsarnaev.

“But in the longer term, it’s a very real and imperilling factor if his appeals are not successful,” he said.

The average capital defendant, said Weinberg, “has a decade of litigation before even becoming eligible for this irrevocably draconian punishment.”

On Thursday, Barr, the attorney general, instructed the Bureau of Prisons to schedule executions starting in December for five men, all accused of murdering children.

Although the death penalty remains legal in 30 states, executions on the federal level are rare. Since the federal death penalty was restored in 1988, the government has put to death only three defendants, with the last one being executed in 2003.

In 2014, following a botched state execution in Oklahoma, President Barack Obama directed the Justice Department to conduct a broad review of capital punishment and issues surrounding lethal injection drugs.

According to Weinberg, the change in federal policy represents a “step that reverses all the illumination of the last decades that demonstrates the system is not perfect and that innocent people are on death row.”

“Mistakes are made and to extinguish the potential to reverse a mistake is just horrifying,” he said.

Barry J. Bisson, another Boston criminal defense attorney, said there are many unanswered questions about the new federal policy.

Barr has approved a new procedure for lethal injections that replaces a three-drug cocktail with a single drug, pentobarbital. The government, said Bisson, is risking “making people lab rats who are put to death.”

“We have no idea much is needed to execute someone,” he said. “We could have a lot of botched executions.”

Bisson expected there to be legal challenges questioning if the new policy constituted cruel and unusual punishment. He wouldn’t be surprised if the issue landed before the Supreme Court, he said.

By the time Tsarnaev has exhausted his legal options, there could be a different federal death penalty policy.

“It may not affect his case at all,” said Bisson.

Travis Andersen and Milton J. Valencia of Globe staff contributed to this report. Material from the Associated Press and The Washington Post was used in this report. Danny McDonald can be reached at Follow him on Twitter @Danny__McDonald.

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